Citation Nr: 0329095
Decision Date: 10/27/03 Archive Date: 11/05/03
DOCKET NO. 98-03 698A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to service connection for a back disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Henriquez, Counsel
INTRODUCTION
The veteran had active service from February 1964 to March
1967.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a July 1997 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in New York,
New York.
REMAND
The veteran is seeking service connection for a back
disability that he contends originated in service.
Specifically, the veteran alleges that he injured his back in
1966 aboard the ship Franklin D. Roosevelt while working on a
tank taking off bolts. He stated that as he started to lift
the tank top, his back cracked and he was carried to sickbay.
The veteran's service medical records show that in March 1966
he was treated for a backache and that he had complained of a
backache for 6 to 8 weeks. The veteran was seen on two
subsequent occasions in March 1966 for back pain. The
discharge examination was negative for any findings,
treatment, or diagnosis of a back disorder.
Reports from various private physicians and VA medical
treatment reports show treatment for arthritis of the back
and hips. Furthermore, following VA examinations in March
1997 and July 2002, the veteran has been diagnosed with
degenerative joint disease of the lumbo-sacral spine.
However, there is no nexus statement of record. Accordingly,
the Board finds that the veteran should be afforded a VA
orthopedic examination to determine the nature and etiology
of any current back disorder.
Additionally, in a decision promulgated on September 22,
2003, Paralyzed Veterans of America v. Secretary of Veterans
Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept.
22, 2003), the United States Court of Appeals for the Federal
Circuit invalidated the 30-day response period contained in
38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§
5103(b)(1). The Court made a conclusion similar to the one
reached in Disabled Am. Veterans v. Secretary of Veterans
Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a
related Board regulation, 38 C.F.R. § 19.9). The court found
that the 30-day period provided in § 3.159(b)(1) to respond
to a Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002)) duty to notify is misleading and detrimental to
claimants whose claims are prematurely denied short of the
statutory one-year period provided for response. The RO must
take this opportunity to inform the appellant that
notwithstanding the information previously provided, a full
year is allowed to respond to a VCAA notice.
Accordingly, this case is REMANDED for the following:
1. The RO must review the claims file
and ensure that all VCAA notice
obligations have been satisfied in
accordance with the recent decision in
Paralyzed Veterans of America v.
Secretary of Veterans Affairs, No. 02-
7007, -7008, -7009, -7010 (Fed. Cir.
Sept. 22, 2003), and Quartuccio v.
Principi, 16 Vet. App. 183 (2002), as
well as 38 U.S.C.A. §§ 5102, 5103, and
5103A (West 2002), and any other
applicable legal precedent.
2. The RO should schedule a VA
orthopedic examination for the veteran to
determine the nature and etiology of any
back disorder. The claims folder must be
made available to and reviewed by the
examiner before completion of the
examination report. Any indicated
testing should be conducted. Thereafter,
the examiner should opine whether it is
at least as likely as not that any
diagnosed back disorder originated during
the veteran's military service or is
otherwise etiologically related to his
military service.
3. Then, after completing any other
needed development and ensuring that the
VA examination report is complete, the RO
should readjudicate the issue on appeal,
considering any newly submitted evidence.
If any benefit sought on appeal remains
denied, the appellant and his
representative should be furnished an
appropriate supplemental statement of the
case and be provided an opportunity to
respond. Thereafter, the case should be
returned to the Board for further
appellate consideration, as appropriate.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).